Thursday, November 29, 2007

Three-judge panel balks at VSB agreement, for now

The Virginia State Bar and Suffolk lawyer Johnnie Mizelle were preparing for a disciplinary hearing before a three-judge panel next Monday when they reached a deal: Mizelle would consent to a five-year suspension of his law license to settle charges that he groped and solicited a number of female clients.

But the judges in the case did not accept the agreement immediately.

Only two of the seven women involved knew about the agreement with Mizelle, who is the former mayor of Suffolk. After a teleconference yesterday, the panel gave the bar additional time to contact the others. A different panel rejected a deal in February which would have suspended Mizelle's license for three years.

The Virginian-Pilot has details.

Author ponders book ban in her native SW Virginia

Grundy native Lee Smith, the award-winning author who has chronicled life in Southwest Virginia in a number of novels, was back in her home region this week. She had a speaking engagement at the University of Virginia’s College at Wise.

She was asked about an effort to ban her novel, “Fair and Tender Ladies,” by the Washington County School Board. The novel details the life of a young woman in Appalachia and includes a short passage about her first sexual experience. Some of the words used are “crude,” prompting the school board to appoint a committee to review the book and determine if high school honor students should read it.

Smith told the Bristol Herald Courier that she was sorry to hear about the book-banning effort. The novel is “a love story to Southwest Virginia,” she said. “Fair and Tender Ladies” is an homage to the older Appalachian women she knew growing up, she added.

Wednesday, November 28, 2007

Explain this one to your insurance agent

We’ve reported stories in the past about road hazards caused by stuff spilled on the highway. Concrete. Fruit. A load of eggs on the Beltway in Northern Virginia.

Here’s a new one: Chicken fat. If that sounds pretty gross, it was.

A tanker was carting chicken fat, a processing byproduct, from a Perdue poultry plant in Accomack County yesterday morning, reports the Richmond Times-Dispatch, when about 3,000 gallons of the goop spilled on Highway 13. Apparently the driver failed to secure a hatch and the stuff sloshed on the road. He realized the mistake 20 miles later when he stopped at a weigh-station.

Chicken fat is brown and oily and smells like rotten chicken that you left in the fridge and forgot to cook by its sell-by date. For a couple of weeks. Imagine 20 miles of that smell. At 6 in the morning, a roadway covered with same looks like it’s drenched with rain, but it is as slick as wintertime black ice.

At least four wrecks were caused by the fat on the road, including one four-car crash that sent several people to the hospital with minor injuries. The highway department moved quickly to get sand down on the fat.

The tanker’s driver was cited for failure to maintain his load.

Naming the new Richmond courthouse, round two

The idea of naming the new federal courthouse in downtown Richmond after Judges Spottswood W. Robinson III and Robert R. Merhige Jr. has been circulating for about two years, with a push from local bar groups.

Last October, Sens. John Warner and George Allen introduced legislation to secure the name, but it went nowhere.

Allen lost his seat to now-Sen. Jim Webb.

Warner's office has issued a press release with much ballyhoo that he will introduce a bill next week to name the courthouse for Robinson, who served on the D.C. Circuit, and Merhige, a longtime U.S. District judge in Richmond.

The release doesn't mention Allen or the failed prior effort. But it does tout that Webb has signed on. Warner and Webb have worked together on judicial nominees for the Old Dominion, with mixed success and cooperation from the White House. Stay tuned to see if they can jog their colleagues into passing the name bill.

Monday, November 26, 2007

Prince William judge appointed to court of appeals

Gov. Tim Kaine appointed Prince William Circuit Judge LeRoy F. Millette Jr. today to fill the Virginia Court of Appeals vacancy created by the retirement of Judge James W. Benton Jr.

Millette, who has a background as a law firm associate and partner, a sole practitioner and a state prosecutor, was named a general district judge in 1990 and elevated to the circuit court in 1993.

He is a graduate of the College of William and Mary and its law school.

Millette, 58, probably is best known for presiding over the capital murder trial of sniper John Muhammad.

“To me as a trial lawyer, temperament is the key, and Lee has always had that,” said John D. Whittington, a Prince William lawyer who tried cases against Millette when Millette was in private practice and has appeared before him after he was appointed to the bench. “He’s got the whole package.”

Monday, November 19, 2007

Damages for Chesapeake Airport neighbors

Property owners who lived near Chesapeake Airport have won the right to damages for noise and vibration that they say has ruined the once quiet, rural setting of their West Landing Estates neighborhood.

In operation since 1977, the airport completed its last runway extension in 1999. George and Margaret Osipovs bought their home in March 2001 for $246,600. The airport and its neighbors apparently co-existed peacefully until early 2003, when the airport began using instrument landing systems. The landowners complained about the increased frequency of landings and departures, and about the types of aircraft coming and going. The Osipovs said the ILS brought low-flying aircraft directly in over their rooftop.

After talks between the airport and surrounding property owners failed to produce the kind of mitigation the neighbors wanted, the Osipovs sued.

On Nov. 16, Chesapeake Circuit Judge Randall D. Smith rejected the owners' claim of a taking under the Virginia Constitution, saying the Osipovs had managed to sell their home in 2006 for more than twice the 2001 purchase price.

But Smith said in Osipovs v. Chesapeake Airport Authority that the Osipovs are entitled to damages for a partial diminution in value from the significant increase in volume, frequency and vibrations from noise due to aircraft flying directly overhead.

The property owners’ claim for just compensation can be determined in a proceeding under Virginia Code § 8.01-187, Smith ruled.

The Osipovs’ case is the first of 12 companion inverse condemnation cases alleging taking and damage resulting from the airport’s expansion, according to Norfolk lawyer Joe Waldo, who represents the Osipovs.

Friday, November 16, 2007

Bush taps Novak, Davis for federal judgeships

President Bush has nominated David J. Novak and Mark S. Davis for federal judgeships in Richmond and Alexandria, respectively.

Novak is an assistant U.S. attorney who worked on the trial of Zacarias Moussaoui, the convicted Sept. 11 conspirator. Davis is a circuit judge in Portsmouth.

Both men were on the list of candidates submitted by Sens. John Warner and Jim Webb to the White House. The Richmond Times-Dispatch has more details.

Clemens gains bars’ backing for Roanoke judgeship

Salem lawyer Chris Clemens has garnered endorsements from three Roanoke-area bar groups for a general district judgeship that will open next year after the retirement of Judge Julian Raney, reports the Roanoke Times.

The Roanoke Bar Association and the Salem/Roanoke County Bar Association have endorsed Clemens. The Roanoke Valley Chapter of the Virginia Women Attorneys Association found both Clemens and Roanoke Commonwealth’s Attorney Donald Caldwell to be “highly recommended.”

Nine candidates have expressed interest in the seat.

Thursday, November 15, 2007

Smyth County OKs $24M courthouse renovation

After literally years of debate and discussion, the Smyth County Board of Supervisors has approved a $24 million plan to renovate the county’s historic courthouse in Marion (right), reports the Bristol Herald Courier.

The action came on a 4-3 vote, with the the board choosing the most expensive of several options. But one member noted that the plan is a 20-year fix.

Judges and other court officials have been saying for years that they need better security and more space.

Board members were aware that the Supreme Court was looking at them. The board chairman said that if something hadn't finally happened, officials at the court wouldn't be shy about forcing the issue, as they had in other jurisdictions.

Embracery charges against lawyer dismissed

A circuit judge yesterday dismissed embracery charges against a Charlottesville lawyer, reports The Daily Progress.

Deborah C. Wyatt has been accused of improperly attempting to influence a grand jury. In December 2004, she contacted members of a grand jury investigating whether to charge one of her clients, offering herself as a witness. Prosecutors charged her with embracery, a common-law offense.

But Judge William H. Ledbetter Jr. said it would be a “grave injustice” for the case to go to trial. He noted that her actions were out of the ordinary, but not illegal.

Wednesday, November 14, 2007

House passes attorney-client privilege measure

The House of Representatives has passed the Attorney-Client Protection Act of 2007, sponsored by Rep. Bobby Scott, D-Va., to protect conversations between attorneys and clients under investigation, reports The Daily Press.

Scott said the bill was needed to prevent strong-arm tactics by prosecutors toward those under investigation. Memos from the Justice Department counseled prosecutors to bring charges against "uncooperative" companies. But "uncooperative" included those companies that refused to waive privilege and turn over confidential information, according to Scott.

H.R. 3013 now goes to the Senate. Sen. Arlen Specter, R-Pa., has sponsored identical legislation in the upper house.

Episcopal Church trial begins in Fairfax

Yesterday in Fairfax, a trial expected to last two weeks got under way that could determine control of the property of 11 churches that voted to leave the Episcopal Diocese. Millions of dollars are at stake.

At issue is an 1867 law, Virginia Code § 57-9, that governs when a congregation can realign its allegiance and keep its property. The breakaway churches say the law favors their position. The diocese counters that the ancient statute only applies when a church governing body recognizes an internal division, which did not happen here.

The Associated Press has details.

Bond of $10M needed to stop Randolph art sale

Opponents of the art sale proposed by officials at Randolph College need to post a $10 million bond by 4:30 p.m. tomorrow to finalize the injunction stopping the auction, reports The News & Advance.

If they fail to post the bond, the school can proceed with the sale, which will be conducted by Christie’s in New York.

Friday, November 9, 2007

2007 'Leaders in the Law' honored

Last night in Richmond, Virginia Lawyers Weekly paid tribute to the 2007 class of "Leaders in the Law." This year's honorees are:

• Richard J. Bonnie, the University of Virginia law professor who has served as chairman of the Supreme Court's commission on mental health reform.

• Richard Cullen, who became chairman of the Richmond-based legal giant McGuireWoods LLP.

• Kyung (Kathryn) N. Dickerson, who completed a four-year tenure as president of the Asian Pacific American Bar Association of Virginia.

• Wyatt B. Durrette Jr., who started a "virtual" intellectual property law firm, The XDL Group.

• Thomas A. Edmonds, who will retire next month as executive director of the Virginia State Bar and who completed his service to the National Association of Bar Executives this year.

• Betsy Wells Edwards, director of the Virginia Fair Trial Project, who helped to persuade the General Assembly to limit the waiver of the cap on court-appointed attorney's fees.

• L. Steven Emmert, an appellate lawyer and chair of the Virginia State Bar's appellate practice subcommittee of the litigation section.

• Robert L. Harris Sr., a retired Richmond Circuit judge who now mediates for The McCammon Group and who is approaching the $1 billion mark in the total value of settlements he has handled.

• Robert R. Hatten, a Newport News attorney who won a significant case in the Supreme Court of Virginia, advancing the development of law in Virginia to obtain remedies for asbestos victims.

• Corinne J. Magee, a leader in the constitutional challenge to the civil remedial fees approved by the General Assembly this year.

• Stephen A. Northup, the first pro bono partner for Troutman Sanders LLP.

• William R. Rakes, who completed his service as chair of the American Bar Association's Section of Legal Education and Admissions to the Bar.

• Diane M. Strickland, a retired Roanoke circuit judge who served as a member of the special commission that investigated the April 16 Virginia Tech shootings.

• William R. Van Buren III, the immediate past president of the Virginia Bar Association, who helped lead the VBA's work on the fee cap waiver and other improvements in indigent criminal defense.

• William T. Wilson, who concluded his service for the Virginia State Bar's Senior Lawyers Conference.

Congratulations to you all! And for a fuller biography and discussion of each 2007 Leader, please see the special Leaders in the Law magazine that has been posted at our Web site.

Thursday, November 8, 2007

Roanoke judge allows challenge to fees to proceed

A civil challenge to Virginia’s abusive driving fees remains alive in Roanoke County Circuit Court.

Judge James R. Swanson ruled Wednesday that the doctrine of sovereign immunity does not bar a request for a declaratory judgment on the constitutionality of Virginia Code § 46.2-206.1, which established the fees as part of a $3 billion package to finance state roads.

In September, Swanson rejected a request by attorneys John P. Fishwick Jr. and Devon J. Munro for an injunction that would have prevented enforcement of the law statewide. Swanson said then that he did not believe that he had the authority to impose such a statewide ban and added that he doubts that the plaintiffs are likely to win their case on the merits.

The judge took under advisement an assertion by Assistant Attorney General Mikie F. Melis that sovereign immunity bars the civil challenge to the law. “In our system there is nothing more fundamental than the right of a citizen to challenge a law on the basis of its unconstitutionality,” Swanson wrote in Wednesday’s opinion. “By their present action, the plaintiffs herein seek nothing more. In such limited context the doctrine of sovereignty immunity is not applicable to bar the plaintiffs’ declaratory judgment action.”
The fees drew little attention during the General Assembly session during the debate over the transportation package.
However, publicity when they were about to take effect on July 1 drew a firestorm of opposition aimed at their high cost, application to relatively trivial offenses and exclusion of out-of-state drivers.
The fees range from $750 to $3,000 payable in three installments over 26 months. Proponents projected that they would eventually raise $65 million annually for state road needs.
Some general district judges have declared the fees unconstitutional, but the first three circuit judges to rule on them have upheld the authority of the legislature to impose them.

Wednesday, November 7, 2007

Daft laws from across the pond

Memo to all the members of the House of Commons and the House of Lords: Don't die on the job. You'll be breaking the law.

That's right. It is illegal to die within the Houses of Parliament.

And that statute was voted the "most ludicrous" piece of legislation on the books in the United Kingdom in a poll conducted by UKTV Gold, a television channel. Nearly 4,000 people were surveyed, according to BBC News. A short list of choices was provided for voting.

The most daft laws, in order, as voted in the poll (drumroll, please):

1. It is illegal to die in the Houses of Parliament.

2. It is an act of treason to place a postage stamp bearing the British king or queen's image upside-down.

3. It is illegal for a woman to be topless in Liverpool except as a clerk in a tropical fish store.

4. Eating mince pies on Christmas Day is banned. (This one apparently dates back to the days of Oliver Cromwell).

5. If someone knocks on your door in Scotland and requires the use of your toilet, you are required to let them enter.

6. In the UK a pregnant woman can legally relieve herself anywhere she wants, including in a policeman's helmet.

7. The head of any dead whale found on the British coast automatically becomes the property of the King, and the tail of the Queen.

8. It is illegal not to tell the tax man anything you do not want him to know, but legal not to tell him information you do not mind him knowing.

9. It is illegal to enter the Houses of Parliament wearing a suit of armour.

10. It is legal to murder a Scotsman within the ancient city walls of York, but only if he is carrying a bow and arrow.

The UKTV Gold poll also asked those surveyed to identify what they thought was the silliest law on an international scale.

The state of Ohio won. There, it is illegal to get a fish drunk. Of course it is.

Still no mixed drinks on Hatteras

Like to spend time at the Outer Banks? You may already know you can’t buy a mixed drink on Hatteras Island.

And that isn’t going to change.

In yesterday’s elections in North Carolina, Hatteras residents went to the polls to vote on a measure that would have allowed the sale of mixed beverages on the island. The Virginian-Pilot reports that the proposal failed by an unofficial vote of 855-657.

Moral: Have a pop at the hotel or the beach house, which is probably a better idea anyway.

Two longtime prosecutors defeated

From yesterday's election results...

Two longtime commonwealth's attorneys, one in Caroline County and the other in Albemarle, were defeated by opponents calling for change.

In Caroline, Harvey Latney Jr. has been the top prosecutor for 30 years. But newcomer Tony Spencer got 60 percent of the vote, according to The Free Lance-Star.

And The Daily Progress reports that challenger Denise Lunsford beat four-term incumbent Jim Camblos in the race for Albemarle County commonwealth’s attorney.

Tuesday, November 6, 2007

Attorney indicted on jury-tampering charges

Embracery? No, it doesn’t mean what you think. The word comes not from the Old French word for arm but from the Middle English word to set on fire or incite—as one might do when trying to influence a juror improperly.

The Daily Progress reports that Charlottesville attorney Deborah C. Wyatt is accused of doing just that in a case that dates back to December 2004. Wyatt is accused of embracery for contacting several members of a grand jury and offering to be a witness when it considered indicting a client on hit-and-run charges.

She wanted to say that the client had a history of seizures, but she was not called, and the client was indicted only to be acquitted later.

Wyatt was actually indicted on five misdemeanor counts of the common-law offense in June 2005, but the charges were sealed while the Virginia State Bar considered whether Wyatt violated legal ethics. The agency finally decided to defer any action until the criminal case was resolved.

Wyatt insists she did nothing wrong.

Friday, November 2, 2007

A good day for criminal defendants

The Supreme Court of Virginia reversed six decisions of the Virginia Court of Appeals today on issues ranging from restitution to the use of a penile plethysmograph test in a sentencing.

A penile plethysmograph attempts to measure the degree of a arousal to various sexual stimuli by measuring changes in the flow of blood to the penis. An attorney for a Tazewell youth convicted of forcible sodomy contended that use of the test in a risk assessment prior to sentencing was improper because it was comparable to a polygraph test and similarly unreliable under the law, and because the prosecution had presented no threshold finding of reliability. A divided panel of the court of appeals disagreed, but the Supreme Court reversed unanimously in Billips v. Commonwealth.

The court ruled in Howell v. Commonwealth that a trial judge had improperly made payment for installation of a security system part of the restitution for the burglary of a business. “Costs that result only indirectly from the offense, that are a step removed from the defendant’s conduct, are too remote and are inappropriate for a restitution payment,” the court said.

In the other cases, the Supreme Court:

● Ruled in Jackson v. Commonwealth that the phrase “under the influence of any narcotic drug or any other self-administered intoxicant” must be construed as a whole so that a defendant was improperly convicted of driving under the influence of the narcotic pain reliever Dilaudid after it had been given to him by an emergency room physician.

● Held in Meeks v. Commonwealth that the venue for credit card theft is “where the card or number is taken from its rightful owner or is received with knowledge that it has been taken with intent to use it, sell it, or transfer it.” The case explicitly overruled the possible interpretation of an earlier case that venue was proper in every jurisdiction where the thief had a card with intent to misuse it.

● Decided in Scott v. Commonwealth that the circumstances of nine robberies in Virginia Beach were not so similar that they constituted a common scheme or plan that permitted them to be presented in the same trial.

● Ruled in McGowan v. Commonwealth that “[t]he commonwealth cannot be allowed to essentially smuggle into evidence during its cross-examination of a defendant proof of another crime not admissible in its case in chief, which is not only highly inflammatory and misleading to a jury, but lacking in serious probative value as well.” Defendant, who was arrested with cocaine two months after the offense for which she was being tried, had testified that she wouldn’t know the drug if she saw it.

The Supreme Court did not hand down Jaynes v. Commonwealth, the most eagerly anticipated criminal case from its September argument session. Jaynes was the first defendant to be sentenced to prison for illegal spamming.

SW Virginia judge removed from bench

The Supreme Court of Virginia has removed J&DR Judge James Michael Shull of the 30th District from office. He is only the second judge to lose his job this way since the Judicial Inquiry and Review Commission was started in 1971.

The Judicial Inquiry and Review Commission had asked that Shull be censured or removed from the bench for several violations of the Canons of Judicial Conduct: he decided visitation cases by flipping a coin, he had asked a woman to drop her pants in court so he could observe a stab wound and he had made an ex parte call to a hospital in that case.

Justice Barbara Milano Keenan, writing for the unanimous court in Judicial Inquiry and Review Comm'n v. Shull, noted that Shull admitted many of the facts that JIRC alleged and he acknowledged that he had broken the Canons.

She said he “failed to uphold the integrity and independence of the judiciary” and that his violations were “grave and substantial.”

Shull argued that the only other judge to be removed has misappropriated confiscated alcohol and firearms, therefore any offense he committed did not warrant removal. But the high court was concerned that Shull demeaned and negatively affected litigants in his court. He was counseled by JIRC on this very point in 2004, but failed to heed their advice, Keenan concluded.

Thursday, November 1, 2007

Former legal secretary admits stealing $92,930

A two-person law office can create a false sense of security, especially if the second person is a long-term employee with a reputation for competence and integrity.

Harvey Latney Jr., the part-time commonwealth’s attorney in Caroline County who maintains a practice in Richmond, has found that out the hard way.

Shelia Mae Boone, Latney’s secretary for 27 years, pleaded guilty Wednesday to a federal bank fraud count related to the theft of at least $92,930 from an estate administered by Latney.

Boone’s attorney says that’s all his client took, but an attorney for Latney insists Boone stole about three times that amount from estates administered by Latney and from law firm accounts.

An estate is suing Latney for more than $200,000, and he is contending that he can tap a legal malpractice insurance policy with limits of $100,000 per occurrence and $300,000 in total coverage. The insurer, ALPS, has responded that a conversion exclusion bars the claim.